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Utah lawmakers hold bill creating duty to report opioid mishandling

FILE - This Feb. 19, 2013 file photo shows OxyContin pills arranged for a photo at a pharmacy in Montpelier, Vt.
FILE - This Feb. 19, 2013 file photo shows OxyContin pills arranged for a photo at a pharmacy in Montpelier, Vt.
Toby Talbot, Associated Press

SALT LAKE CITY — Legislators on Wednesday held a bill that would make it a crime to not report fraudulent handling of opioids at a health care facility, saying there were significant concerns over how it could be interpreted.

But despite voting unanimously to hold it, the House Health and Human Services Committee still appeared willing to hear HB446 again on a quick turnaround after some of its language was updated.

"I would much rather try to fix this in committee with the level of discussion that we've had here today," said Rep. Brad Daw, R-Orem, chairman of the committee. "This is not a minor amendment that we can do on the floor of the House."

As it was presented Wednesday, HB446 says that "an individual is guilty of a class B misdemeanor if (they know) or (have) reason to believe that a practitioner is involved in diversion and knowingly fails to report the diversion to a peace officer or law enforcement agency." The bill would apply to diversion of opioids that are federally designated as a Schedule II or Schedule III substance.

Rep. Ray Ward, R-Bountiful, said he was concerned that the bill's definition of diversion only covers the practice of unlawfully setting aside drugs for illegal use by another person and not by the person doing the diverting themselves.

"Typically that person doesn't usually sell that to someone else. Usually, that person just kind of skims it off to the side for their own self because they have a bad narcotic addiction and this is their chance to get their fix or to not be in withdrawal," Ward said.

HB446 sponsor Rep. Steve Eliason, R-Sandy, agreed that the language in his bill "would seem to preclude the individual" stealing the drugs themselves, and that he would be open to adjusting its language to change that.

Ward said that under the language of HB446, it looked like others besides a colleague or supervisor could be held liable for not reporting drug diversion to law enforcement, including immediate family members.

"I think there needs to be a much higher standard where an employer knows an employee is doing this (and fires them) but kind of sweeps it under the rug," he said.

Eliason clarified "there's no intent to snag anybody else" besides health practitioners who are aware of the drug skimming.

"Excellent questions have been raised," he said, adding he didn't have a problem with the committee's preference to hold the bill.

However, the lawmaker was in disagreement with a concern raised by the Utah Sentencing Commission about the bill setting too low of a threshold at which a person could be charged with a crime.

"We have problems with the 'or reason to believe'" phrase in the bill, said Marshall Thompson, director of the commission.

"Bills like this are very unique in our criminal law. There's very few criminal laws that require an affirmative duty on the part of a person, so this is a big deal," Thompson said. "This is a criminal penalty if they don't (act) and that's why we feel strongly that it would have to be (limited to) that higher 'knowing' standard."

But Eliason said only requiring those who certainly know a health practitioner is diverting opioids makes it so that "anybody could then just take a pass and say, 'Well, I thought they were stealing it but I didn't know for sure.’"

"I appreciate the concern but I believe that will effectively gut the bill," he said.

Eliason said one critical objective of his bill was to prevent health care workers who serially steal drugs at their job from taking advantage of future employers.

"Sometimes the individual is fired and basically told not to disclose what happened and they move on to another position in a health care setting and the cycle repeats itself," he said. "These individuals that are looking to make money or supply their own addiction move from health care setting to health care setting."